Wednesday, April 23, 2003

Miranda Warnings

Any watcher of TV police dramas knows that the police try as hard as they can to elicit confessions from suspects, and they obey precious few rules in the pursuit of same. I have had a (very) few close calls with the police myself in my storied past, and can assure those of you who don't already know this, the truth is even harder to bear. Thus, one of my favorite pastimes is to observe the way a free society must promulgate rules intended to rein in the police, and the way the police and prosecutors avoid and defeat these rules to make their jobs easier.

Of course, most conservatives have precious little personal experience with the police, and tend to believe that "you have nothing to hide if you've done nothing wrong." What surprises me is the neocons: who I prefer to call "ex-liberals," who should take the middle path on this issue, but all too often take the more hard line approach to "law-and-order" issues. Recently one of my favorite neocons, Jack Rich, over at Haganah, took up the subject of the Miranda warning, and his recommendations for its future. Rather that paraphrase, I repeat here his entire post, and our colloquy issuing therefrom. Of course, you can and should go over to his site and read the original post. Or just read it right here:

Watching Miranda by Jack Rich

With apologies for a near-pun, it appears that the Supremes, once again, will wade into the fray on the so-called Miranda Warning. From The Washington Post, this story, headlined "High Court to Reconsider Miranda Warnings." That warning, now enshrined in police-drama lore as a "constitutional" right against self-incrimination, has been a bane to police and prosecutors. The original 1966 decision, was, most people may not remember, a close call; a 5-4 decision by the very liberal Warren Court.

This narrow reading of what is permissible police conduct works has been falsely enshrined as a constitutional bulwark. It works against the best interests of society. Those who love it best are so-called liberals, who, correctly, note that it was, and remains, primarily the poor and uneducated who benefit. This may be a worthy goal, but the Constitution is a rather blunt and inappropriate instrument to further it.

What Miranda accomplishes is to make harder to convict the guilty while not really protecting the innocent. As for confession that is given in the absence of an attorney, this is obviously not a violation on its face of the Fifth Amendment ("...nor shall be compelled in any criminal case to be a witness against himself..."). Absent physical or harsh psychological coercion, a confession has not been compelled. The liberal view, which I can't espouse, would likely be that the average schlub who's been arrested is too dumb to know that the Fifth Amendment exists; hence will confess just to get out of the interrogation room.

And here is the flip side of the libertarian coin -- knowledge of one's rights. Rights of citizenship come with some obligations. The simplest of these is some basic knowledge of what your rights are, and what they are not. Just as we are told that ignorance of the law is no excuse, we should be expected to know that we have the right to not bear witness against ourselves.

Beyond treating us all as ignoramuses, Miranda creates a garden of loopholes in which that notorious "fruit of a poisoned tree" may flourish. In simple English, it lets the guilty go free on technicalities rather than on questions of guilt or innocence. And hence the violence done to simple English jurisprudence.

Without Miranda warnings, it is certain that there would be some, hopefully and in my opinion few, innocents who confess. My sense, however, is that these few would be far outnumbered by the guilty perpetrators who would no longer get off on technicalities.

Let's look at what four of the Nine had to say in their dissent:
The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward "voluntariness" in a utopian sense, or to view it from a different angle, voluntariness with a vengeance. . . .
Miranda has hampered police and the courts. It is one of the worst examples of the government telling us that we are incompetent citizens who know not our basic rights. Let's hope that this time the Court makes the right choice.

Posted by Jack Rich at 04:14 PM

You dismiss over two hundred years of American jurisprudential experience with a glib smugness. Unlike you, I was once suspected of a crime by those myrmidons of the law, the police. Even with the Miranda protections, the amount of pressure applied to me to confess or reveal something was Kafkaesque. My demands to see an attorney were ignored and ridiculed. When my alibi panned out, I was released without apology. When I went to complain, no record of my detainment existed. This occurred in New York City.

I survived, but since then I have had an acute sensitivity to the fact that the police will abuse their power in every way possible when they believe that they have a guilty person in their grasp. And they believe almost everyone to be guilty. You smug people, who believe that you have nothing to fear if you have done nothing wrong, do no service to the pursuit of liberty. Felix Frankfurter said that it is better that one hundred guilty go free than one innocent be imprisoned. I think he went a little far, but I know for a fact that the innocent must be protected from the power of the law. As a Jew, I knew this, even before I experienced it first hand. Why don't you realize that the power of the police must be restrained? Do you really feel that, in order to avoid a guilty person's use of a "loophole," you must leave the innocent without protection?

Posted by Michael Gersh at April 22, 2003 01:40 PM
Michael Gersh raises a fair point. Those of us who've never been in the star chamber can be smug -- it's easy to talk about what others have to endure. My apologies if that is what came across; it wasn't intended.

It brings to mind an old bromide, that a conservative is a liberal who's been mugged, and a liberal is a conservative who's been arrested.

But I dispute that I somehow "don't realize that the power of the police must be restrained." It is not for nothing that I wrote "Absent physical or harsh psychological coercion..." I also purposefully included this from the minority:
The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion.My post was not about having no fetters on the police; it was about how Miranda hampers the justice system and allows more criminals to return to the streets to deprive us of some of our liberty.

Posted by Jack Rich at April 22, 2003 04:54 PM
The police are in the business of prosecuting the guilty, not protecting the innocent. Under our system of laws, it is up to the state to prove the guilt of those it believes to be culpable offenders. Forcing those it believes to be guilty to confess is a means that the police use to short circuit the process, and avoid having to do the more difficult part of their job.

That being the nature of things, it is up to the state to impede the police from taking control of the process, by restraining the police through a system of rules. We therefore have a system that affords rights and protections to the accused. However, until a suspect is arrested, he has very little of that protection.

Miranda is an imperfect means of restraint over the police. But it is one of the few protections that the innocent have, prior to an arrest, as I learned the hard way. It is a very weak protection at best. Before you advocate weakening or removing the Miranda rule, you must propose something to replace it. Personally, I would strengthen it. Who in their right mind would confess anyway? There are a few who truly wish to confess, and I would allow them that, once they are represented by counsel. But since almost all confessions are coerced, and therefore should be suspect, I would favor a rule that no confessions should be allowed before a suspect is represented by counsel. Once we have established such a rule, you can repeal Miranda if you so desire.

Posted by Michael Gersh at April 23, 2003 10:46 AM